Granger v. Judge of Superior Court

• Decision Date: 13 October 1880
• Citation: 6 N.W. 848,44 Mich. 384
• Court: Michigan Supreme Court
• Parties: GRANGER v. JUDGE OF SUPERIOR COURT.

6 N.W. 848

44 Mich. 384

GRANGER v. JUDGE OF SUPERIOR COURT.

Supreme Court of Michigan

October 13, 1880

In an action where a rule to plead in 10 days was entered, and personal service made of declaration and rule, judgment by default was entered. Held, that such judgment, though erroneous, was not absolutely void, and mandamus would not lie to compel its vacation.

Mandamus to vacate judgment.

CAMPBELL J.

This is a motion for a mandamus to require the entry of an order vacating a judgment by default for want of due process. On the twenty-fifth of June, 1873, a declaration was filed in the Detroit superior court, and rule to plead within 10 days entered, and a copy of the declaration and of this rule was duly served. Default was taken July 10th and judgment was finally entered on August 11, 1873. On September 22, 1880, a motion was made to vacate this judgment and refused. This application is made upon the idea that in Wyandotte Rolling Mill Co. v. Robinson, 34 Mich. 433, this court intended to hold judgments obtained under the 10-day rule to plead absolutely void.

That decision was on error, and the entry of such a judgment was held erroneous. But there is no intimation in that case that the judgment is void.

Although the commencement of suits by declaration and service of notice of rule to plead is statutory, and must conform to the statute, yet there is no reason for putting it on any different footing from other process. Either by rule or statute, or by recognized practice, some time has always been required to intervene between the service or return of a writ and the time fixed for appearance; and sometimes a writ is required to run a certain length of time. It would not be competent to enter a default on process which in form or in service did not allow the requisite time to the defendant. And in other cases notice is often required to run for a certain period. But it has not been held that where there has been an actual personal service of such writ or notice proceedings under it are nullities. 1 Tidd's Pr 152-160-161-162 and notes.

The reason is plain enough. The party having been legally served within the jurisdiction is personally informed that proceedings will be urged against him. He has a right to expect that in due time the plaintiff will discover the error and take steps to rectify it. If this is not done, he has a right to the common-law remedies for the correction of errors...